Worldwide De-Indexing Order Against Google Upheld By Supreme Court Of Canada

The Supreme Court of Canada released a landmark decision today ruling that Canadian common law courts have the jurisdiction to make global de-indexing orders against search engines like Google. In so, ordering, the Court in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 underlined the breadth of courts' jurisdiction to make orders against search engines to stem illegal activities on the Internet including the sale of products manufactured using trade secrets misappropriated from innovative companies.

The decision arose from a lower court decision that ordered Google to block websites that were selling goods that violated the trade secrets of the plaintiffs. The plaintiffs obtained a default order against the defendants. But, the defendants continued to sell the offending goods over the Internet. The plaintiffs, unable to enforce their order, asked for Google's help in blocking the websites. Google voluntarily de-indexed specific URL's requested by the plaintiffs, but this "whac-a-mole" process was ineffective. When Google refused to de-index the offending websites from its search results, the plaintiffs brought a motion against Google for interim relief requiring Google to de-index the websites from all of its search engines worldwide.

Over Google's objections, in Equustek Solutions Inc. v. Jack 2014 BCSC 1063 Madam Justice Fenlon of the British Columbia Supreme Court granted the injunction. Google subsequently applied for leave to appeal the decision to the British Columbia Court of Appeal and for an order staying the enforcement of the order. In Equustek Solutions Inc. v. Google Inc., 2014 BCCA 295, the court granted Google leave to appeal the decision but refused Google's application to stay enforcement of the injunction order. Google's appeal was later dismissed by the Court of Appeal in Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265. For a summary of the prior proceedings, see Barry Sookman, Google ordered by BC court to block websites: Equustek Solutions Inc. v. Jack.

The Supreme Court of Canada, in a seven to two majority decision written by Justice Abella, affirmed the decisions below.

Google had argued that courts had no jurisdiction to make orders against it as a non-party to the litigation. It argued that any order against it should have been limited to the google.ca search engine. It also contended that the worldwide order would violate the principle of comity and rights of freedom of expression. The Court rejected each of these arguments and found that the balance of convenience favoured granting the order.

Jurisdiction to make orders against non-party search engines

The Court rejected Google's contention that no order could be made against it since the injunction in the case was not specifically directed to it. The Court rejected this argument on three grounds. First, that "injunctions may be issued 'in all cases in which it appears to the court to be just or convenient that the order should be made . . . on terms and conditions the court thinks just'". Second, if a non-party violates a court order, it can be enjoined if its conduct would obstruct the course of justice".

The third basis for granting such an order is the long-standing equitable protective jurisdiction which enables courts to make orders against entities that facilitate, even unwittingly, the commission of a wrong. This basis of jurisdiction had been recently applied by the English Court of Appeal in Cartier International AG & Ors v British Sky Broadcasting Ltd & Ors [2016] EWCA Civ 658 (06 July 2016) in affirming the jurisdiction of English courts to make blocking orders against Internet Service Providers requiring them to disable access to foreign websites that offered counterfeit goods for sale.

Norwich orders are analogous and can also be used to compel non-parties to disclose information or documents in their possession required by a claimant (Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), at p. 175). Norwich orders have increasingly been used in the online context by plaintiffs who allege that they are being anonymously defamed or defrauded and seek orders against Internet service providers to disclose the identity of the perpetrator (York University v. Bell Canada...